United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
RICHARD P. MATSCH, Senior District Judge.
The objective of this civil action, considered as an application for a writ of habeas corpus under 28 U.S.C. § 2241, is to discover the factual support for Respondent to continue subjecting Applicant Ramzi Yousef to Special Administrative Measures ("SAMS") as part of his imprisonment at the U.S. Penitentiary, Administrative Maximum ("ADX") in Florence, Colorado. SAMs are special conditions and restrictions of confinement pertaining to where a prisoner will be housed, to whom he may communicate, and how that communication may occur. See 28 C.F.R. § 501.3(a). By regulation, the Director of the U.S. Bureau of Prisons ("BOP"), upon the direction of the U.S. Attorney General, may authorize a Warden of a federal penitentiary to impose SAMs upon a federal prisoner if there is a finding "that there is a substantial risk that [the] prisoner's communications or contacts with persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons." Id . Yousef was first subject to SAMs in August 1996, before his conviction, upon a finding by then-Attorney General Janet Reno that he fit that standard. His SAMs have been renewed every year since.
Respondent United States filed an Answer to Yousef's habeas petition, attaching documents which are under a Level 1 restriction. A hearing was held on January 29, 2014, part of which was conducted in a closed courtroom; the transcript of that portion has also been sealed. At the hearing, Yousef's counsel made it clear that Yousef is not challenging the constitutionality of SAMs or the conditions of confinement that have been imposed on him. This is not an Eighth Amendment case. Yousef's claim is that the reasons given in renewing his SAMs are repetitive and inadequate to permit him to challenge their sufficiency, which denies him the protection of the due process clause of the Fifth Amendment.
To sustain his procedural due process claim, Yousef must establish: (1) that he has been deprived of a constitutionally-protected liberty interest; and (2) that the procedures employed by Respondent in depriving him of that interest were constitutionally insufficient. See Swarthout v. Cooke , 131 S.Ct. 859, 861 (2011).
Prisoners retain only a "narrow range of protected liberty interests, " Rezaq v. Nalley , 677 F.3d 1001, 1011 (10th Cir. 2012), which are infringed when a prisoner's conditions of confinement are "atypical" and he must endure a "significant hardship in relation to the ordinary incidents of prison life." Wilkinson v. Austin , 545 U.S. 209, 222-23 (2005). Determining whether conditions are atypical and impose a significant hardship requires a "fact-driven assessment that accounts for the totality of conditions presented by a given inmate's sentence and confinement." Rezaq , 677 F.3d at 1012. Relevant, non-dispositive factors in that assessment include whether: (1) the restriction relates to and furthers a legitimate penological interest; (2) the conditions of confinement are extreme; (3) the restriction increases the duration of confinement; and (4) whether the restriction is indeterminate and of significant duration. Estate of DiMarco v. Wyo. Dep't of Corrs. , 473 F.3d 1334, 1342 (10th Cir. 2007).
To satisfy the first factor, the government must show a "reasonable relationship" between the challenged restriction and a legitimate penological interest. Rezaq , 677 F.3d at 1014. In making that showing, prison officials are permitted to rely not only the prisoner's post-incarceration conduct, but also on the nature of the underlying crime for which the prisoner was convicted. See Sattar v. Holder, No. 07-cv-02698-PAB, 2012 WL 882401, at *8 (D. Colo. Mar. 15, 2012) (citing cases). Addressing national security risks posed by inmates with terrorist ties and sympathies is a legitimate, "uniquely federal penological interest." Rezaq , 677 F.3d at 1014. There is no question that Yousef is one such inmate. Yousef led the plot to bomb the World Trade Center in 1993. He recruited conspirators, directed the construction of the bomb, and, when the time came, he personally drove the bomb to the World Trade Center's parking garage, set the bomb's timer to detonate, and fled the complex. The high-profile nature of Yousef's crimes has made Yousef a motivating force for international terrorists (including Ayman al-Zawahari, head of al Qaeda), who invoke Yousef's name in propaganda statements and acts of violence. [See Doc. 39 at 10-11.] Active terrorists have also attempted to contact Yousef during his incarceration. [Id. at 11-12.]
Respondent's position is that the Court must defer to the Executive Branch in matters affecting national security. While it is difficult to accept that proposition, particularly in matters of liberty, the Supreme Court's opinion in Holder v. Humanitarian Law Project , 130 S.Ct. 2705, 2727 (2010), supports it. At any rate, such deference is due in this case given the convictions and sentences imposed on Ramzi Yousef following a full criminal trial, and given Yousef's own statements of animosity towards the United States. Accordingly, Respondent has a legitimate penological interest in restricting and monitoring Yousef's interactions and communications with persons inside and outside of ADX. The SAMs bear a "reasonable relationship" to that interest. The first DiMarco factor weighs against recognizing a liberty interest.
The second DiMarco factor looks at whether the challenged conditions are "extreme, " DiMarco , 473 F.3d at 1342, an inquiry guided by comparing the conditions the inmate challenges to (1) the type of nonpunitive confinement routinely imposed on inmates serving comparable sentences, and to (2) the conditions deemed relevant by the Supreme Court in Wilkinson. Rezaq , 677 F.3d at 1014. Yousef's current SAMs [Doc. 67, Ex. 1] impose a number of restrictions, including:
Correspondence: Yousef's non-legal contacts are limited to his immediate family, consisting of his wife and two daughters, his mother and father, and eleven siblings. Yousef may exchange correspondence with them, with no limits on how long or frequent those letters may be. Federal Bureau of Investigation ("FBI") Joint Terrorism Task Force ("JTTF") personnel monitor and review the letters. Yousef may also exchange an unlimited amount of correspondence with his attorney, which is unmonitored, and with representatives of the federal government. Yousef may request that additional persons be approved to communicate with him, but he has not done so.
Visitors: Yousef's immediate family and his attorney may visit him at ADX. There is no limit on the number of visits he may have with that limited group of people. The visits are non-contact. Yousef is prohibited from receiving other visitors.
Telephone Calls: Yousef is allowed at least one 15-minute nonlegal telephone call per month, and he is currently allowed three such calls per month because he is in Phase Two of the ADX Special Security Unit Program. JTTF personnel monitor these calls.
Contact with News Media: Yousef is explicitly prohibited from contacting the news media, either directly or through a third party.
Group Prayer: Yousef is prohibited from engaging in group prayer with other inmates.
Reading Materials: The BOP may restrict the publications (newspapers, periodicals, and books) Yousef can receive. The BOP has not rejected any of Yousef's publication requests. Yousef can receive the current day's edition of USA Today. He can also access approximately 900 titles from the H Unit leisure library by submitting a verbal ...